Opinion filed October 22, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00236-CR
__________
JULIAN GUTIERREZ MONCADA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause No. 12247
MEMORANDUM OPINION
In the first count of a two-count indictment, the grand jury indicted Julian
Gutierrez Moncada, Appellant, for the offense of indecency with a child by contact.
In the second count of the indictment, the grand jury indicted Appellant for the
offense of indecency with a child by exposure. In the indictment, it was alleged that
the offenses occurred on or about January 1, 2013. The jury found Appellant guilty
of both offenses and assessed his punishment at confinement for fifteen years on
Count One and for ten years on Count Two. The trial court sentenced him
accordingly. We modify and affirm.
The child victim in this case is J.B. At the time of trial, August 2018, J.B. was
seventeen years old. She testified that, at some point, her mother and Appellant had
been in a relationship and that Appellant had moved in with them; they lived on
Louisiana Street in Sweetwater at the time. J.B. could not remember how old she
was at that time, but the record indicates that the events surrounding the charges in
this case occurred at various times between J.B.’s fourth and sixth grade school
years. J.B. tied the dates of the incidents she testified about to the locations they
lived at the time of the incidents. They also lived on Ragland Street, Bristol Street,
and New Mexico Street, all in Sweetwater.
Appellant touched J.B. for the first time when they lived on Louisiana Street;
he rubbed her leg. Over time, the conduct escalated. At times, he “[touched her]
behind,” moved her underwear so that he could touch her “behind” and vagina with
his penis, fondled her breasts, and used his hands to “move stuff out of the way” so
that he could touch her with his penis. It appears from the record that Appellant
ejaculated onto J.B.’s vagina because J.B. testified that Appellant kept touching her
“until he was finished” and then she had “like, sticky stuff down there.” Although
J.B. could not remember how many times these incidents occurred, she testified that
they occurred three to four times a week. J.B. said that, after the incidents, she went
into the bathroom, cleaned up, and cried.
In September 2015, J.B. told her mother about Appellant’s conduct. J.B.’s
mother took J.B. to the police station and then to the Children’s Advocacy Center.
Subsequently, Julie Ann Denney, a certified sexual assault nurse examiner,
examined J.B. Denney testified that J.B. told her about Appellant’s conduct. J.B.
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told Denney that Appellant had penetrated J.B.’s vagina and had also forced her to
perform oral sex on him. Denney did not observe any trauma but explained why
certain physical evidence might not be present in the examination. Denney also
tested J.B. for sexually transmitted diseases; J.B. tested positive for chlamydia.
Medical records showed that J.B.’s mother was also diagnosed with chlamydia
within a few months of J.B.’s testing positive for chlamydia.
Appellant testified at trial; he denied the allegations and stated that he did not
know about the allegations until he was arrested. Appellant believed either that he
was being set up by J.B.’s mother or that J.B. was trying to get attention.
In his first of three issues on appeal, Appellant claims that the evidence is
insufficient to prove that he is guilty of indecency with a child by exposure, as
charged in Count Two of the indictment, because the State did not establish that he
caused J.B.’s genitals to be exposed. Appellant does not challenge the sufficiency
of the evidence in connection with the first count in the indictment, indecency with
a child by contact.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
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the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
The Texas Penal Code provides:
(a) A person commits an offense if, with a child younger than 17
years of age, whether the child is of the same or opposite sex and
regardless of whether the person knows the age of the child at the time
of the offense, the person:
(1) engages in sexual contact with the child or
causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire
of any person:
(A) exposes the person’s anus or any part
of the person’s genitals, knowing the child is
present; or
(B) causes the child to expose the child’s
anus or any part of the child’s genitals.
TEX. PENAL CODE ANN. § 21.11(a) (West 2019).
The crux of Appellant’s argument is that the State did not prove that there was
an exposure of J.B.’s genitals. We are thus confronted with the question: What is
“exposure” under Section 21.11(a)(2)(B) of the Texas Penal Code?
Because the term “expose” is not defined by statute, we will examine the term
in a way that is consistent with its generally understood meaning. Cantu v. State,
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604 S.W.3d 590, 593 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing
Warner v. State, 257 S.W.3d 243, 246 (Tex. Crim. App. 2008) (“[A] term not defined
by the legislature may be understood by its meaning in ordinary usage.”)). As far as
the indecency with a child by exposure statute is concerned, exposure means: “To
deprive of concealment; to disclose or unmask something criminal, shameful, or the
like.” Balfour v. State, 993 S.W.2d 765, 769 (Tex. App.—Austin 1999, pet. ref’d)
(quoting Miller v. State, 243 S.W.2d 175, 176 (Tex. Crim. App. 1951)).
Most of the cases on this subject involve circumstances where the defendant
exposed his own genitals to another. It has been held in those cases that it is not
necessary that the victim actually see the defendant’s genitals, only that they be
exposed. See, e.g., Harris v. State, 359 S.W.3d 625, 631 (Tex. Crim. App. 2011).1
The offense is complete when the defendant unlawfully exposes himself. Id.
We do not believe that it should be any different in situations when a
defendant causes exposure of a child’s genitals. It is not necessary that anyone see
the exposed genitals, it is enough that they were exposed. There can be little doubt,
if any at all, in this case that there was a deprivation of concealment; a disclosure
and unmasking of “something criminal, shameful, or the like.” Balfour, 993 S.W.2d
at 769 (quoting Miller, 243 S.W.2d at 176).
J.B. testified that Appellant moved her underwear so that he could touch her
“behind” and vagina with his penis and used his hands to “move stuff out of the
way” so that he could touch her with his penis. As we have noted, Appellant
apparently ejaculated onto J.B.’s vagina because J.B. testified that Appellant kept
touching her “until he was finished” and that she then had “like, sticky stuff down
1
Appellant relies on Beasley v. State, 906 S.W.2d 270 (Tex. App.—Beaumont 1995, no pet.). In
Beasley, the court held that there was no exposure when the defendant covered his penis with his hand and
the complaining witness could not see it. We respectfully decline to follow Beasley.
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there.” As the trier of fact, it was the jury’s prerogative to believe that testimony. It
is difficult for us to understand how all of that could transpire without exposing
J.B.’s genitals. We overrule Appellant’s first issue on appeal.
In his second issue on appeal, Appellant asserts that the trial court reversibly
erred when it refused to allow him to cross-examine J.B. about an incident “[w]hen
[J.B.] was at the tracks and got picked up by four boys and taken to a home in
[Roscoe] and was found the next day.” At trial, the State maintained that the
testimony was not relevant and that, even if it were relevant, any probative value of
the testimony would be outweighed by the prejudicial effect of the testimony. The
trial court ruled that the testimony was not relevant and that it confused the issues.
Outside the jury’s presence, Appellant’s counsel stated that she wanted to ask
J.B. about the kidnapping in order to show a “lack of supervision” and that she
wanted to “prove that there’s a lack of supervision in [J.B.’s] life.” Trial counsel
also explained that the testimony would show that J.B. “was at the tracks and got
picked up by four boys and taken to a home in [Roscoe] and was found the next
day.” Counsel also stated that “what I’m trying to prove is that there was lots of
opportunity for lots of things to happen with [J.B.]. It wasn’t just one time that -- or
it wasn’t just one person that she was exposed to.” The State argued that the
testimony was not relevant because lack of supervision had no probative value as to
whether Appellant committed the offense.
In his brief, Appellant further maintains that the State had offered evidence
that both J.B. and her mother had contracted chlamydia and that the State wanted to
“link mother and daughter as both having Chlamydia so that the jury would draw the
inference that they would only both have Chlamydia if they both shared a sexual
partner . . . that must mean Appellant committed these offenses.” The kidnapping
testimony, Appellant argues, would have rebutted this evidence.
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We review a trial court’s ruling on the admissibility of evidence for an abuse
of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001).
The first step in a trial court’s determination of whether to admit evidence is
to find the evidence to be relevant. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim.
App. 2016). Although our rules favor the admission of all relevant evidence, “the
trial court judge is still in charge of making the threshold decision as to whether
evidence is relevant,” and that decision will not be overturned unless it is “clearly
wrong.” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).
Evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence; and . . . the fact is of consequence
in determining the action.” TEX. R. EVID. 401. Thus, to be relevant, the evidence
must be probative and material. Evidence is probative if it makes a fact more or less
probable than it would be without the evidence. Henley, 493 S.W.3d at 84–85.
Evidence is material if the fact that it is offered to prove is a fact that is of
consequence in the determination of the action. Id. at 85. Thus, if the evidence is
offered to help prove a proposition that is not a matter in issue, the evidence is
immaterial and therefore inadmissible. TEX. R. EVID. 402; Henley, 493 S.W.3d at
84.
During trial, Appellant’s trial counsel stated that the purpose of the offer was
to show “all the different places [J.B.’s] lived and the people that she’s lived with.”
Trial counsel went on to tell the trial court that she referenced the kidnapping to
show “[l]ack of supervision. I’m trying to prove that there’s a lack of supervision in
her life.” Trial counsel also argued in the trial court that there were “a lot of different
people” that J.B. “was exposed to.” Appellant’s trial counsel also told the trial court
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that counsel was not trying to show that J.B. was promiscuous, just that “the
opportunity was -- was there, and that’s -- that’s all I was going for is just to show
that there was a lot of unaccounted for time in this girl’s life.” Implicit in trial
counsel’s argument was that counsel also wanted to use the testimony to rebut the
State’s suggestion that Appellant gave both J.B. and J.B.’s mother chlamydia.
Lack of supervision is not an element of either indecency with a child by
contact or indecency with a child by exposure. Further, the record shows that the
kidnapping incident occurred at a time later than Appellant’s conduct that was made
the subject of the charges in the indictment in this case. We also note that the
kidnapping incident was later in time than was J.B.’s diagnosis of chlamydia.
Additionally, there was no offer of proof as to what, if anything, happened during
the alleged kidnapping. We hold, therefore, that the trial court did not abuse its
discretion when it ruled that the kidnapping testimony was not relevant and therefore
not admissible. Because the testimony was clearly not relevant, we see no need to
discuss Rule 403 of the Texas Rules of Evidence.
The Sixth Amendment to the U.S. Constitution provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. Appellant claims that the trial court denied
him that right when it excluded the kidnapping evidence.
It is the general rule that, to preserve error, a defendant must timely and
specifically object. “Confrontation Clause claims are subject to this preservation
requirement.” Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). At no
time did Appellant object, on Confrontation Clause grounds, to the trial court’s
refusal to allow him to question J.B. about the kidnapping incident. The entire on-
the-record discussion about the admissibility of the kidnapping testimony was
centered around whether the testimony was relevant. The trial court was never given
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the opportunity to rule on the Confrontation Clause argument that Appellant now
makes on appeal. Appellant has not preserved the issue for appeal. See id.; see also
TEX. R. APP. P. 33.1. Because the trial court did not abuse its discretion when it
found that the kidnapping testimony was not relevant, and because Appellant failed
to object on Confrontation Clause grounds, we overrule Appellant’s second issue on
appeal.
In his third issue on appeal, Appellant complains of the trial court’s order in
which the trial court assessed court-appointed attorney’s fees against Appellant.
Early in the history of this case, the trial court entered its “ORDER ON
DEFENDANT’S APPLICATION FOR DETERMINATION OF INDIGENCY
AND REQUEST FOR COURT APPOINTED COUNSEL.” In the order, the trial
court appointed counsel to represent Appellant. However, the trial court found that
“[t]he Defendant does not meet the indigency standards of this Court; however, the
Court finds that the interest of justice requires that counsel be appointed to represent
the Defendant in this matter, and therefore, the Request for Court-Appointed
Counsel is GRANTED.” The order also contained a provision that “[t]he Defendant
is ORDERED to immediately report to the Office of Court Collections and make
payments of at least $50.00 per month toward [his] court appointed attorney fee;
total payments not to exceed $500.00.” In its final judgment, the trial court ordered
Appellant to pay court costs of $782 and attorney’s fees of $5,350.
Under the provisions of Article 26.05(g) of the Texas Code of Criminal
Procedure, if a judge determines that a defendant has financial resources that would
“enable the defendant to offset in part or in whole, the costs of legal services
provided to defendant,” the judge is required to order the defendant to pay the
amount that the judge finds that the defendant is able to pay. TEX. CODE CRIM. PROC.
ANN. art. 26.05(g) (West Supp. 2020). After a defendant has been found to be
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indigent, it is presumed that the defendant remains indigent throughout the
remainder of the proceedings, unless there is a material change in the defendant’s
financial circumstance. Id. art. 26.04(p).
In this case, the trial court did not enter a finding that Appellant was indigent
when the trial court appointed counsel. Instead, the trial court found that its
standards for indigency were not met, but it appointed counsel “in the interest of
justice.” Therefore, we are not concerned with the presumption provided for in
Article 26.04(p) of the Texas Code of Criminal Procedure. But the trial court’s
original finding of “no indigency” is not a finding as to Appellant’s ability to pay at
the time that the trial court entered its judgment and ordered that Appellant pay
court-appointed attorney’s fees. Jackson v. State, 562 S.W.3d 717, 723 (Tex.
App.—Amarillo 2018, no pet.).
There is no evidence in the record as to Appellant’s financial resources at the
time that the trial court entered its judgment. In the absence of evidence that
demonstrated Appellant’s financial resources that were available to Appellant to
offset the costs of legal services, the trial court erred when it ordered Appellant to
reimburse the costs of court-appointed attorney’s fees. Id. We, therefore, sustain
Appellant’s third issue on appeal and modify the judgment of the trial court to delete
that portion of the judgment in which the trial court ordered Appellant to pay court-
appointed attorney’s fees.2 Id. (citing Mayer v. State, 309 S.W.3d 552, 556–57 (Tex.
Crim. App. 2010) (trial court judgment modified to delete unauthorized attorney’s
fees and affirmed as modified)).
2
We recently decided Engel v. State, No. 11-18-00225-CR, 2020 WL 5491100, at *10 (Tex. App.—
Eastland Sept. 11, 2020, no pet. h.). Unlike Appellant here, the appellant in Engel asked that we delete
only a portion of the attorney’s fees that the trial court had ordered in the final judgment.
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We modify the judgment of the trial court to delete the requirement that
Appellant reimburse the cost of his court-appointed attorney. As modified, we
affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
October 22, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3
Willson, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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